back to article Can GCHQ order techies to work as govt snoops? Experts fear: 'Yes'

The UK Home Office's ambiguous response to whether or not the Investigatory Powers Act gives the British government the authority to pressure or force people to work for GCHQ is troubling. When Reg reader Simon Clubley pointed out the unclear wording of section 190 of the new law, it generated a lively debate among legal …

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And what happens if you accept the job and are seriously bad at it?

If you are served a warrant, are your passport privileges and job prospects based on results and non disclosure?

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"threats about what would happen if they revealed its existence"

Um, sorry but issuing warrants is one thing, having them automatically accompanied with a gag order is another issue entirely.

Are we in democracy or not ? Since when is the proper functioning of Justice supposed to be secret ? Secrecy is the tool of oppressive regimes and dictatorships, not the tool of political regimes that respect the individual.

If I was faced with a warrant, I would likely comply, but if I were threatened to keep it silent I would most strongly consider shouting the fact from the rooftops by sheer spirit of resistance. And with a lawsuit if necessary. I do not consider saying "I am constrained by a warrant" to be a matter of National Security.

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Re: "threats about what would happen if they revealed its existence"

"Are we in democracy or not ?"

Any answers?

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Re: "threats about what would happen if they revealed its existence"

Secret policeman: This is a warrant requiring you to ...

Reseacher: Wait! Telling anyone about those warrants is illegal. Are you sure you want to complete that sentence?

Later:

Clerk of the court: You are charged with failure to comply with ...

Reseacher: Wait! ...

It goes down hill from there. Hands up everyone who has ever seen a warrant (my hand is up). Keep your hand up if you could tell just by looking at it is a warrant is genuine (my hand is down). If it is a fake, you can seek legal advice to find out if it is real. If not, getting advice is a crime. Complying with a fake warrant to install malware is crime. Imagine you get caught obeying a genuine warrant - you cannot mention the warrant as part of you defence without breaking the law.

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Re: "threats about what would happen if they revealed its existence"

Completely in agreement. Secret Warrants are an abomination unto Nuggan

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Re: "threats about what would happen if they revealed its existence"

Interesting idea.

So if you wanted to eavesdrop on your ex-wife or the kid that stole your lunch money once in 3rd grade, you could prepare an official looking warrant that includes a gag order clause, buy a nice fake gub'mint badge on eBay (delivered by eParcel from China, no doubt!) and rent a big black SUV (if in the US, substitute appropriate vehicle for the UK) and show up at the door of a telco.

You'd have to pick a smaller one, a big one probably has people with government connections who can verify these sorts of things, but a small rural one? If you are convincing, it just might work!

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Re: "threats about what would happen if they revealed its existence"

'If it is a fake, you can seek legal advice to find out if it is real. If not, getting advice is a crime. Complying with a fake warrant to install malware is crime. Imagine you get caught obeying a genuine warrant - you cannot mention the warrant as part of you defence without breaking the law.' - @ Flocke Kroes

In which case 'the law' is obviously bollocks -- in terms of justice and in terms of morality. It may be a bureaucratic authoritarian wetdream, but as far back as Magna Carta, etc. this is exactly the kind of self-serving immoral kind of injustice that generations of people have sought (to the point of bloodshed in some cases) to prevent.

So, what is the betting that if a case of this ever actually came to trial that, sans dictatorship, our lovely Govt. would get the kicking it richly deserved. 'They' are betting on fear and bully tactics ensuring that day in court never happens, as the kind of scum who promulgate this kind of thing always have done, and always will.

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Headmaster

"The Home Office statement indicates that paragraph (3)(f) of Section 132 of the IPA comes into play, so that anyone served with a warrant - even if they are under no obligation to assist the government - is still liable to prosecution simply by revealing they had been served with a warrant"

In these circumstances, would I still be allowed to talk to my lawyer?

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Anonymous Coward

"Hello, is that Messrs S, G & R? I need to talk to you about a sensitive matter. Unfortunately I can't tell you what it is, because of paragraph (3)(f) of Section 132 of the IPA."

(you'd probably still get a bill?)

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Anonymous Coward

In these circumstances, would I still be allowed to talk to my lawyer?

Yes. In legal terms, the lawyer is your representative. He'd be bound by confidentiality rules, but lawyers (and judges) have a bit of a special status in the legal system, for obvious reasons. Otherwise the law could not work, for the exact reasons you so nicely illustrated :)

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[I'm the same person mentioned in the article. Thanks to everyone for your feedback.]

@phuzz. Section 133, paragraph 4 comes into play here. According to that section, you are allowed to make disclosures in connection with any legal proceedings which have been initiated against you.

Before you get to that stage, you are also allowed under that section to seek the advice of your professional legal adviser, but only your professional legal advisor, for matters relating to the provisions of the IPA after you have received the warrant.

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It's all about intimidation and fear. What do you fear them doing to you if you just say no? You're not going to talk your way out of it, even with a lawyer. All you can do is call their bluff. Are they really going to kidnap you and throw you in a cell as an extremist? Maybe. Are they going to investigate all of your life for the past 30 years? Maybe. Will they freeze your bank accounts and get you fired? Maybe.

The chances are they will move to someone with less backbone than you and intimidate them into helping them.

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I have to work on this?

Sure no problem, just give me a minute......Ooopsie. Don't think I should of done that.

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Anonymous Coward

"This leaves the government free to shop around, serving warrants on multiple experts, until they find one they can intimidate into working with them," according to Clubley.

I know it's deeply unfashionable these days, but you never know; it's just possible that they come across some expert who is actually willing to help put some scumbag in jail.

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Anonymous Coward

I'm sure there are some people who think you are a scumbag. I wouldn't be happy if the state asked me to help jail you!

You might not be too hot on thinking but that's not a jail-able offence in my book....

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"it's just possible that they come across some expert who is actually willing to help put some scumbag in jail."

Indeed. I have been that very expert. But (a) it was part of my job and (b) it was part of a long-established legal process. It would have been somewhat different if it involved mass surveillance of a sort which has already been struck down in court in a previous guise, which I might fear to be illegal under over-arching European legislation (which, thankfully, still exists to protect us against government overreach) and which, in my view, goes against the long established principle of the presumption of innocence.

OTOH if I found myself in an employment situation where I discovered such scumbag activity I would probably find myself becoming a whistle-blower although oddly enough intelligence agencies don't seem favourably disposed to these.

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Anonymous Coward

...although oddly enough intelligence agencies don't seem favourably disposed to these.

And you know that how?

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"

it's just possible that they come across some expert who is actually willing to help put some scumbag in jail.

"

The problem is that you would not know that. Just because the police *say* that the suspect is a paedoterrorist does not mean that he *is*. Remember Jean Charles DeMenezes? Harry Stanley?

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Anonymous Coward

And helping out would make that situation worse? Exactly how?

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@Doctor Syntax

Hmm, well I think given that the act makes specific provisions for people to get a hearing, I think European courts would be the last port of call.

I think another way of looking at this is, invited / asked, that it's an opportunity to help get the job done properly.

Someone asked to help who then refuses to help can't very well then go on to criticise them for how they've gone about doing the job without that help.

Warrant's True Purpose

I think that one thing everyone has forgotten is that for anyone to do anything investigatory, they need the legal top cover offered by the warrant.

Without the warrant an expert cannot legally assist the authorities in their investigatory actions, even if they wanted to. Without the warrant the expert would likely be breaking the law. I think that the act is saying that if an expert is asked, and volunteers, they are protected from prosecution for things they do within the terms of the warrant. Important to have...

A telecoms company cannot just tap a phone conversation that's running over their wires; that's illegal. They themselves need the warrant to carry out what has been requested.

It's the same for the authorities; they themselves cannot act without a warrant saying they can act (which has always been the case).

That's my interpretation of what the act is really getting at. It's likely just an unfortunate turn of phrase with an unforeseen interpretation.

The fact that the act says that only a telecoms company is obliged to respond to a warrant I think gives weight to this line of thought.

What do you reckon?

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Anonymous Coward

A telecoms company cannot just tap a phone conversation that's running over their wires; that's illegal. They themselves need the warrant to carry out what has been requested.

Correct (disclosure: many years ago I worked in legal intercept). There is a second, much more business related reason for correct paperwork: such intercepts are not free of charge. I haven't read this law if it carries cost provisions for an intercept, but I can assure you that intercepts are billable to the government and there's no telco on earth that will deprive itself of the opportunity to bill something, and for that it needs the warrant. Absolutely nothing will happen without a warrant because it combines legal protection of the activity with an opportunity to recover costs on the kit they were obliged to install to comply with their operating license.

Ironically, the costs in turn slow down enthusiasm for a high volume of lawful intercepts - as far as I know it's not cheap.

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"And you know that how?"

Have you heard of a Mr Snowden?

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"What do you reckon?"

I reckon over-broadly worded legislation straying well beyond centuries-old legal limits parading ministerial authority as due process of law and under-scrutinised by Parliament is a dangerous thing.

I also reckon that possibly the notion that a warrant could be served on an individual and binding on a telecoms provider may have been intended to allow someone to collar a bloke driving an Openreach van and tell him, as a representative of a telecoms provider to put a tap on a given line without going through too much paperwork. I further reckon that even if that's the case it's open to misuse far beyond that.

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Mr Snowden?

@Doctor Syntax Mr Snowden didnt work alone, Mr Stallman & Julian Assange helped.

As a long suffering Mac OS user, I can tell you I was not keen on XServe or XCPU being in Darwin!

An to think it I once used to program in Debian..

XNU Kernel - 10's Not Unix! :P

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Anonymous Coward

@Doctor Syntax,

Have you heard of a Mr Snowden?

Well, he didn't work for the British. He worked for the Americans. Whatever he felt about the options he had for raising concerns within his employer's organisation has zero bearing on the culture / environment in a British agency.

So I ask again. How do you know?

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@Doctor Syntax,

I reckon over-broadly worded legislation straying well beyond centuries-old legal limits parading ministerial authority as due process of law and under-scrutinised by Parliament is a dangerous thing.

I also reckon that possibly the notion that a warrant could be served on an individual and binding on a telecoms provider may have been intended to allow someone to collar a bloke driving an Openreach van and tell him, as a representative of a telecoms provider to put a tap on a given line without going through too much paperwork. I further reckon that even if that's the case it's open to misuse far beyond that.

Hang on a minute. A warrant is not and never has been an order, instruction, something compelling. It is permission to act in a way that would otherwise be illegal, those actions being judged a necessity to advance a specific investigation by a minister and/or judge and/or someone else duly empowered to make such decisions. It is not served on anyone, it is given to someone.

The dictionary definition of a warrant is "a document issued by a legal or government official authorizing the police or another body to make an arrest, search premises, or carry out some other action relating to the administration of justice". The key word is authorise; there's no compulsion.

An ordinary policeman who wants to enter a property needs a warrant, but once it has been obtained they're not actually obliged to bust down the relevant door. AFAIK the only way someone can be compelled to do anything is by direct order from a high court judge (or greater), but that's a very different beast to a warrant.

If a warrant were an irrisistable order, there'd be no need to specifically mention telecoms companies in the acts. They are mentioned because a warrant is simply permission, not an order, so the act has to specifically state that telecoms have to help out with the warrant.

I don't see why anone would collar a wireman out on the streets - I'm pretty sure that the networks are more nationally reachable than that. And, strictly speaking, a warrant is basically the only paperwork that someone needs to take an action that would otherwise be illegal. And it's not going to be carte-blanche to do anything, it's going to very specific.

I think that this whole thing has come about because whats-his-name has misunderstood what a warrant actually is. If one considers the act in the context of a warrant being permission (specifically permission for someone who can and wants to assist to actually provide that assistance), and not an order, the wording makes a lot more sense and is far less 1984 than whats-his-name has been making out.

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Anonymous Coward

Does that mean

that if I let anyone use my broadband via my router, or anyone that enables BT openzone on the hub (or equivalents) becomes a provider and subject to the provision?

I also assume that the telecoms providers can outsource their expertise and therefore the provider will not have the ability to fulfull any warrants. That could also be an interesting option.

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Anonymous Coward

Re: Does that mean

and what about coffee shops / pubs that provide Wi-Fi for customers? are they operators under this?

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Re: Does that mean

"and what about coffee shops / pubs that provide Wi-Fi for customers? are they operators under this?"

If the summary given in the article is correct then it would appear that they are. Whether that's by intent or by carelessness is a matter for conjecture. It's an aspect that should have received scrutiny in Parliament If my ex-MP's attitude was anything to go by I doubt there was much enthusiasm for such scrutiny, at least on the govt. side.

In a way I'm a little sorry he isn't still my MP, if he were I could keep asking him to clarify such issues that he voted for so unthinkingly.

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Re: Does that mean

It would probably extend to web servers and web sites and maybe email servers. I don't just see it as the information on the wire since that's not all that helpful. It's only when it's reached a destination does it assemble into something meaningful. Ie the customers computer or the web site they were looking at. In the website there could be account names and messages. Lets say the spooks wanted to investigate activity on a forum. They would contact the site owner or someone who could make them a moderator. The owner of the server could do this going behind the site operator.

As for the customers computer, who runs that. OK the customer but then also anyone who wrote software that's on that computer. They could be compelled to put spies in there.

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FFS!

"That would appear to obligate oblige some third-party..."

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Re: FFS!

@LeeE. Thanks for the correction.

On the plus side at least I now know you were interested enough to read the whole article. :-)

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Re: FFS!

@Simon Clubley: You're welcome - don't do it again ;)

Hearing or reading the word 'obligate' is as pleasant an experience as a Punji stick in the eye and only a masochist could derive gratification from using it. I can't help feeling that it's only employed by people who believe that using words with more syllables, intrinsic awkwardness of pronunciation and inelegance makes them look more cleverer.

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Coffee/keyboard

Re: FFS!

@Lee. " look more cleverer" You owe me a new keyboard. Almost as good as an ex-colleague who intentionally used much more cleaverer and much more betterer coz he know it niggled.

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Gimp

So intimdating legal BS from the masters of intimdating, but unenforcible legal BS

And if you tell them to f**k off you can't tell anyone they are shopping around for someone they can pressure into doing this.

Smells like the usual high standard of work from the department of data fetishists.

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Convenient excuse

You're nicked for hacking that bank.

But I was doing it for the security services

Look here is a warrant PDF - it looked official to me, and it says I'm not allowed to ask a lawyer so I was just obeying orders...

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Anonymous Coward

"The law says what the law says, and interpretation is up to the courts – who may chose to take into account other information like statements in Parliament, but may not."

IMHO such interpretations only happen when the case reaches the higher appeal courts. There have been cases in the past*** where the minister allayed fears by saying a law wouldn't apply in some particular circumstances. Then the police and CPS promptly used the wording of the law to prosecute and convict people.

***Using Public Order offences against naturists to circumvent their implicit protection in the Sexual Offences Act 2003. The minister had said that would not happen.

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Happy

Escape route?

I don't know anything like enough about either telecoms or OSs to be of any value to the spooks, but I think my response would be to appear suitably cowed, and work quite diligently, but you know, I find it remarkably common that I make mistakes when under pressure. It is just so easy to put a semicolon in the wrong place or forget the braces around a code block - or even put them on the wrong lines.

When the data inadvertently gets leaked all over the place I'd obviously be greatly upset and immediately offer to put things right, but I guess I'd be dismissed for incompetence. Shame that.

P.S. I had to make several edits of this little bit of text!

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Unhappy

"none of them really gave themselves sufficient time to examine the wording"

Again, that's not a bug in the legislation, its a feature. It's just a feature that benefits them, not us.

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Re: "none of them really gave themselves sufficient time to examine the wording"

It's not really important how they word it since you're not going to word your way out of it if they decide to get you for it. Less and less of this counties activities are governed by the law and more and more by what ever it is they are trying to do. The law is just there to force you to do what they say.

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Paris Hilton

I'm a telecom operator?

"Section 261 of the Act defines that a "telecommunications operator" is anyone who provides or controls a communications network of any kind."

I have a home network that I control and administrate. Does that make me a telecom operator???

(Thankfully, I'm in the US, and we don't have crazy surveillance laws... never mind...)

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Anonymous Coward

Re: I'm a telecom operator?

Now that's funny. It's good to see that comedy can be brought to a serious topic. :)

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This post has been deleted by its author

Dm4

Sir Humphrey Appleby

Straight from a yes prime minister script

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Big Brother

It's nice to get official confirmation...

...of our status as slaves of the state isn't it.

Not much different from conscription, only with less opportunity to object on the grounds of being a pacifist.

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FAIL

What a load of complete cobblers!

1. Did you miss the word "warrant"? As in court-issued and approved? The UK courts do not give out warrants compelling people to provide services for anyone, they issue warrants relating to specific equipment and data searches for specific suspected crimes which compel people to obey the request to give up said equipment or data. The idea that a court would issue a warrant to force someone to go spy for HMG is simply so farcically paranoid it beggars belief! I find it hard to believe anyone not on seriously mind-altering substances was arguing that.

2. If I wanted to spy on anyone the last thing I would want to do was include an unwilling and probably antagonistic person into my secret investigation. Seriously, the idea is just too stupid for words. Not only are they very likely to not work to the best of their skills, they are far more likely to deliberately hinder the investigation and ensure the target escapes, if only because they "hate The Man".

3. Please stop for a moment to consider that the GCHQ, NSA and other chums already have not only a more than capable set of well-trained staff with plenty of skills, they also have external parties that are already vetted and approved to help provide assistance when required. The idea they would need some self-trained haxor to assist them is simply comic and speaks more of self-preening egotism than a firm grasp on reality.

The only people bound to comply with this law are telco staff receiving court warrants demanding they recover something like a backup to show the texts between two telephone numbers of interest explicitly stated in the warrant. They are not going to be asked to hack anything. That El Reg would see fit to publish a click-bait article implying such nonsense is bordering on fake news.

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Anonymous Coward

Re: What a load of complete cobblers!

Matt,

"Did you miss the word "warrant"? As in court-issued and approved?"

Which part of the Act is it where you saw the Court issuing bulk equipment interference warrants? I couldn't' find it, but been a long day, so I haven't read entire thing.

Huge amounts of it, including bulk equipment interference warrants, are not down to the courts, they're controlled by the Secretary of State. Bulk equipment interference warrants are issued by the Secretary of State, not a court. They are then subject to review by a Judicial Commissioner (appointed by ..), but if she/he says "no" then the Secretary can appeal to the Investigatory Powers Commissioner (appointed by ..). However, if the Secretary thinks it's urgent, it comes into effect anyway.

In the case of the bulk equipment interference warrants, which I have to admit is the part I read (not the whole act), issuing of warrants can be delegated to an official?

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Re: What a load of complete cobblers!

"The UK courts do not give out warrants compelling people to provide services for anyone"

Well, they certainly don't in these cases. It's the Sec of State (a certain Amber Rudd of proven keen intellect) or someone wielding her rubber stamp.

That's one of the concerns.

Warning: this post may contain traces of sarcasm.

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tories for totalitarianism.

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OK, to lighten up this debate - assuming a warrant comes with a gag order how do TPTB prosecute someone who refuses to obey the warrant?

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